Riddick v. Riddick

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

SARA A. RIDDICK, Petitioner/Appellee,

v.

BRANDON RIDDICK, Respondent/Appellant.

No. 1 CA-CV 25-0221 FC
FILED 11-03-2025

Appeal from the Superior Court in Maricopa County
No. FC2021-050304
The Honorable Colleen E. O’Donnell-Smith, Judge

REVERSED AND REMANDED

COUNSEL

Keist, Thurston, O’Brien P.C., Peoria
By Joel N. Thurston
Counsel for Petitioner/Appellee

Law Offices of Vescio & Seifert, P.C., Glendale
By Theresa L. Seifert
Counsel for Respondent/Appellant

RIDDICK v. RIDDICK
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Vice Chief Judge David D.
Weinzweig joined.

B A I L E Y, Judge:

¶1 Brandon Riddick (“Husband”) appeals the superior court’s
denial of his petition to terminate spousal maintenance owed to Sara
Ziolkowski, f/k/a Sara A. Riddick (“Wife”). He argues the court erred in
concluding that Arizona Revised Statutes (“A.R.S.”) section 25-317(G)
prevented the court from modifying the decree regarding spousal
maintenance and in finding that the decree and Property Settlement
Agreement (“PSA”) terms prevented spousal maintenance from
terminating upon Wife’s remarriage. For the following reasons, we reverse
and remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife married in 1996. They divorced in January
2022 pursuant to a consent decree for dissolution (“the decree”), approved
by the superior court. The couple has two children who were minors at the
time of the divorce but have since turned eighteen years old.

¶3 The parties agreed to a division of community property and
debts set forth in both the decree and the PSA and agreed the PSA would
be incorporated but not merged into the decree. Husband agreed to pay
Wife $2,000 per month for child support and $2,000 per month for spousal
maintenance for five years. In regard to modification, the decree provides:

Spousal maintenance is non-modifiable unless child support
is decreased. If child support is decreased, then spousal
maintenance will increase so that Husband is paying Wife
$4,000.00 per month combined child support and spousal
support, for five years.

¶4 The PSA contains spousal maintenance language identical to
the decree and adds:

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Regardless of any change of future circumstances, even if the
events were unforeseen, as to either or both parties, each has
expressly, irrevocably, and forever waived any right in the
future to modify spousal maintenance, either on a temporary
or permanent basis.

¶5 Wife remarried in May 2024. The following month, she
petitioned for enforcement and contempt of court, claiming Husband was
behind on his child support and spousal maintenance payments. Husband
responded with a petition to terminate spousal maintenance and child
support and to modify parenting time. As relevant here, Husband asserted
that spousal maintenance should be terminated because Wife had
remarried.

¶6 Wife admitted she remarried but argued the non-
modification clause in the decree and PSA precluded terminating
Husband’s spousal maintenance obligation. Wife also agreed that the
children were no longer eligible for child support but contended that any
modification would have no practical effect because the decree required
Husband’s spousal maintenance obligation to increase concomitantly with
any decrease in child support.

¶7 The superior court held a hearing on the petitions. The court
found A.R.S. § 25-317(G) prevented it from exercising jurisdiction to modify
the spousal maintenance award in the decree. The court also found that the
terms of the decree and PSA prevented termination of spousal maintenance
by any means, including Wife’s remarriage. Husband timely appealed. We
have jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

¶8 Husband argues the superior court erred by finding Wife’s
remarriage did not terminate his spousal maintenance obligation under
A.R.S. § 25-327(B). We review de novo legal questions, such as interpreting
statues, rules, and the decree. Felipe v. Theme Tech Corp., 235 Ariz. 520, 524,
¶ 10 (App. 2014); Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001).
We will not overturn factual findings unless they are clearly erroneous.
Danielson, 201 Ariz. at 406, ¶ 13.

I. The PSA and Decree

¶9 The superior court denied Husband’s petition to terminate
spousal maintenance because it concluded the terms of the decree and PSA
satisfied the requirements of A.R.S. § 25-327(B). The statute provides:

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Unless otherwise agreed in writing or expressly provided in
the decree, the obligation to pay future maintenance is
terminated on the death of either party or the remarriage of
the party receiving maintenance.

A.R.S. § 25-327(B). The phrases “agreed in writing” and “expressly
provided in the decree” refer to two forms of agreement that bind the
parties to a dissolution of marriage. Garlan v. Garlan, 249 Ariz. 278, 282, ¶¶
11-12 (App. 2020). The “agreed in writing” clause refers to the power of the
parties to enter a written separation agreement containing maintenance
provisions. Id. at ¶ 11. The “expressly provided in the decree” clause refers
to the court’s power to enter a judgment fixing the rights and liabilities of
the parties. Id. at ¶ 12. Here, the parties entered a written separation
agreement (the PSA) and were bound by a decree. The parties have pointed
to no legal authority, and we have found none, requiring that we interpret
each provision differently. We therefore apply the same standard to both
provisions.

¶10 Husband argues neither the decree nor the PSA expressly
provides for spousal maintenance to continue past Wife’s remarriage. This
court has previously held that to satisfy A.R.S. § 25-327(B), language
providing for continued spousal maintenance after remarriage must be
“direct or unmistakable.” Estelle v. Estelle, 122 Ariz. 109, 113 (1979). We
addressed a similar situation in Diefenbach v. Holmberg, 200 Ariz. 415, 416, ¶
1 (App. 2001), when a husband petitioned to terminate spousal
maintenance after his wife died. We reviewed whether decree language
stating that spousal maintenance was “non-modifiable in amount or
duration for any reason by either party” satisfied A.R.S. § 25-327(B). Id. at
¶¶ 2, 4. We held the language did not prevent the support obligation from
terminating upon Wife’s death because the decree addressed neither
termination nor death. Id. at ¶¶ 2-5. Likewise, in Palmer v. Palmer, 217 Ariz.
67, 69, 71, ¶¶ 3, 13 (App. 2007), we reviewed whether spousal maintenance
terminated upon the recipient’s remarriage, when the decree ordered
“[s]aid term and amount of spousal maintenance is non-modifiable until
October 21, 2008, except such shall end upon the death of [Wife]” but said
nothing about remarriage. We held that “the intentional omission of
[remarriage] termination language . . . is not equivalent to an affirmative,
unambiguous statement that the parties intended the spousal maintenance
obligations to continue [after remarriage].” Id. at 71, ¶ 13 (quoting
Diefenbach, 200 Ariz. at 418, ¶ 8).

¶11 Here, the decree states “[s]pousal maintenance is non-
modifiable unless child support is decreased.” The PSA adds language

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waiving the right of either party to modify spousal maintenance. But
neither provision addresses remarriage and thus shows no “direct or
unmistakable” intent to avoid A.R.S. § 25-327(B). See Estelle, 122 Ariz. at
113. And we need not consider the parties’ subjective understanding of the
provisions’ meaning, as Wife urges, because the decree is a judgment of the
court. See In re Marriage of Zale, 193 Ariz. 246, 247-50, ¶¶ 1-16 (1999). As
such, extrinsic evidence is not admissible to interpret its terms. See id. at
250, ¶ 15 (concluding that the parol evidence rule does not apply to a
judgment).

¶12 Diefenbach and Palmer are dispositive. Both require an express
statement that spousal maintenance shall not be terminated upon
remarriage and instruct that language addressing only non-modification is
insufficient to prevent spousal maintenance from terminating upon the
maintenance recipient’s remarriage. The decree and PSA lack an explicit
reference to remarriage or termination, and so they do not prevent the
application of A.R.S. § 25-327(B).

II. Superior Court Jurisdiction

¶13 The superior court also found A.R.S. § 25-317(G) prevented it
from exercising jurisdiction to modify the decree regarding spousal
maintenance.

¶14 Modification and termination of spousal maintenance are
governed by A.R.S. § 25-327(A) and (B). Section 25-327(A) allows a court to
modify or terminate spousal maintenance upon a showing of changed
circumstances. As discussed above, Section 25-327(B) terminates the
maintenance obligation upon the death of either party or the remarriage of
the recipient. However, the parties to a separation agreement may limit the
court’s power to modify or terminate a support order in the decree.

¶15 Section 25-317(G) provides that:

[E]ntry of a decree that sets forth or incorporates by reference
a separation agreement that provides that its maintenance
terms shall not be modified prevents the court from exercising
jurisdiction to modify the decree and the separation
agreement regarding maintenance.

¶16 In In re Marriage of Waldren, 217 Ariz. 173, 177, ¶ 18 (2007), the
Arizona Supreme Court held that A.R.S. § 25-317(G) precludes a court from
exercising jurisdiction to either modify or terminate spousal support under
A.R.S. § 25-327(A) if the parties agree that spousal maintenance will be non-

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modifiable. Wife argued in the superior court and on appeal that Waldren
applies here and Diefenbach is inapposite. But Walden explicitly addressed
Diefenbach and stated that Diefenbach’s holding was not relevant as it was
based on A.R.S. § 25-327(B), not § 25-327(A). Id. at 176-77, ¶¶ 16-18.

¶17 We note that a footnote in Waldren does “disapprove of
dictum in Diefenbach stating that while courts lack jurisdiction under A.R.S.
§ 25-317(G) to modify decrees regarding non-modifiable maintenance
terms, they retain jurisdiction to terminate such provisions.” Id. at 177 n.4.
As earlier noted, the Waldren court distinguished Diefenbach, but did not
overrule it, so we read the footnote itself as dicta and therefore decline to
follow its reasoning. See generally State v. Mata, 185 Ariz. 319, 337 (1996)
(Zlaket, J., dissenting in part, concurring in part) (criticizing any reliance on
footnotes while “stating the obvious—that [a footnote] is and was intended
to be dicta because holdings do not appear in footnotes”).

¶18 Even so, Waldren and Diefenbach are not necessarily at odds.
Read together, they hold that under A.R.S. § 25-317(G) a non-modification
provision may prevent a court from exercising jurisdiction to modify or
terminate a maintenance order in a decree when analyzing changed
circumstances under A.R.S. § 25-327(A). But a request to terminate spousal
maintenance under A.R.S. § 25-327(B) does not require the court to modify
the decree because the support order terminates by operation of law upon
the death of either party or the remarriage of the recipient. Because
Husband sought termination under A.R.S. § 25-327(B), § 25-317(G) does not
prevent the superior court from exercising jurisdiction.

III. Spousal Maintenance as Community Property

¶19 In the superior court, Wife raised an alternative argument that
the spousal support award cannot be modified because the parties agreed
to it as part of the apportionment of their community property. Spousal
maintenance awarded as consideration for a property settlement is not
modifiable or terminable. States v. States, 124 Ariz. 189, 190 (1979) (setting
forth five criteria for determining whether spousal maintenance was agreed
to as consideration for a property settlement). Because the superior court
denied Husband’s petition to terminate spousal maintenance, it did not
reach Wife’s alternative argument. On remand, the court must determine
whether the spousal maintenance was awarded as consideration for a
property settlement.

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IV. Attorneys’ Fees and Costs on Appeal

¶20 Husband and Wife each request attorneys’ fees and costs
under A.R.S. § 25-324 and Arizona Rule of Civil Appellate Procedure
(“ARCAP”) 21. ARCAP 21 is not a basis for fees or costs. See ARCAP
21(a)(2). Neither party took a more unreasonable position on appeal, and
Wife’s assertion that Husband retained more property from the marriage is
unsupported by the record. Accordingly, we decline to award fees or costs.

CONCLUSION

¶21 We reverse the superior court’s order denying Husband’s
petition to terminate spousal maintenance. We remand for further
proceedings consistent with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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